Fordham Law Review Volume 80 Issue 3 Article 1 December 2011 Introduction Sheila R. Foster Fordham University School of Law Daniel Bonilla Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Sheila R. Foster and Daniel Bonilla, Introduction, 80 Fordham L. Rev. 1003 (2011). Available at: https://ir.lawnet.fordham.edu/flr/vol80/iss3/1 This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. SYMPOSIUM THE SOCIAL FUNCTION OF PROPERTY: A COMPARATIVE PERSPECTIVE INTRODUCTION Sheila R. Foster* & Daniel Bonilla** The classical liberal conception of property dominates the modern legal and political imagination. The idea that property is a subjective and nearly absolute right controls the way in which much of modern law and politics understand this institution. It is common for citizens, politicians, and academics to view property as an individual right that is limited only by the rights of others and the public interest. The holder of this right is therefore someone who can use, reap the benefits of, and dispose of her assets in the manner she deems appropriate, provided the limits imposed by the legal order and the common good are not violated.1 This right, moreover, is essential for the exercise of individual autonomy.2 Property enables and reflects the decisions made by individuals with respect to their life plans. Property provides the material substratum that allows people to construct their identities and express their moral commitments. Individual autonomy and property are thus deeply intertwined. Consequently, the classical liberal concept of property imposes negative duties on both the state and individuals.3 Both should refrain from acting in such a way as to adversely affect individual rights to property. Despite its ubiquity in the modern legal and political consciousness, the classical liberal conception of property competes with, and is challenged by, * Albert A. Walsh Professor of Law and Vice Dean, Fordham University School of Law. This symposium was sponsored by the Albert A. Walsh Chair in Real Estate, Land Use, and Property Law. My deepest gratitude extends to Professor Daniel Bonilla, for conceiving of the idea for this symposium, and Toni Fine, Assistant Dean for International Affairs at Fordham, for her assistance in organizing a very successful intellectual gathering. ** Associate Professor and Co-director of the Public Interest Law Group, University of the Andes School of Law, Bogotá, Colombia. He is currently the Leitner Center Distinguished Visiting Professor, Fordham University School of Law. 1. LOREN LOMANSKY, PERSONS, RIGHTS, AND THE MORAL COMMUNITY 111–51 (1987). 2. Eric Mack, Self-Ownership and the Right of Property, 73 MONIST 519 (1990). 3. Richard A. Epstein, Property Rights and the Rule of Law: Classical Liberalism Confronts the Modern Administrative State 6–10 (Aug. 5, 2009) (Hoover Inst. Task Force on Property Rights), http://www.law.nyu.edu/ecm_dlv1/groups/public/@nyu_law_website__ academics__colloquia__legal_political_and_social_philosophy/documents/documents/ecm_ pro_062726.pdf. 1003 1004 FORDHAM LAW REVIEW [Vol. 80 other forms of imagining the institution. Classical liberal property has been sharply criticized by theoretical perspectives as diverse as egalitarian liberalism,4 socialism,5 and communism.6 These perspectives generally challenge the classical liberal conception as incomplete or unjust. Critics indicate, for example, that classical liberal property obscures the obligations and connections that the subject has with the community,7 or they emphasize the negative consequences that this right has on the distribution of wealth.8 At the normative level, opponents of classical liberal property offer a variety of alternatives, from the abolition of private ownership of the means of production to strong government intervention in the rights to property in order to achieve redistributive aims. I. LEÓN DUGUIT AND THE IDEA OF THE SOCIAL FUNCTION OF PROPERTY One of these alternative concepts, and perhaps one of the most suggestive and influential of the twentieth century, is the social function of property.9 This way of understanding property was articulated paradigmatically by the French jurist León Duguit10 in a set of six lectures given in Buenos Aires in 1911.11 At these conferences, Duguit argued that property is not a right but rather a social function.12 According to this view, property has internal 4. See JOHN CHRISTMAN, THE MYTH OF PROPERTY: TOWARD AN EGALITARIAN THEORY OF OWNERSHIP 125–84 (1994); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY ch. 12 (Oxford Univ. Press 1990) (1988). 5. See P.J. PROUDHON, WHAT IS PROPERTY: AN INQUIRY INTO THE PRINCIPLE OF RIGHT AND OF GOVERNMENT (Benjamin R. Tucker trans., 1876). 6. See KARL MARX, THE ECONOMIC AND PHILOSOPHIC MANUSCRIPTS OF 1844, at 93–114 (Foreign Languages Publ’g House 1961) (1844). 7. See Patricia J. Williams, On Being the Object of Property, in FEMINIST LEGAL THEORY: READINGS IN LAW AND GENDER 165, 165–80 (Katharine T. Bartlett & Rosanne Kennedy eds., 1991). 8. See generally MICHAEL OTSUKA, LIBERTARIANISM WITHOUT INEQUALITY (2003); Peter Vallentyne, Libertarianism and the State, 24 SOC. PHIL. & POL’Y 187 (2007). 9. See generally M.C. Mirow, The Social-Obligation Norm of Property: Duguit, Hayem, and Others, 22 FLA. J. INT’L L. 191 (2010). 10. León Duguit (1859–1928) was a professor of public law at the University of Bordeaux beginning in 1886. For biographical information on Duguit, see José Luis Monereo Pérez & José Calvo Gonzalez, Léon Duguit (1859-1928): Jurista de una Sociedad en Transformación, 4 REVISTA DE DERECHO CONSTITUCIONAL EUROPEO 483, 483–86 (2005). Duguit is considered to be the father of the social function of property. See UGO MATTEI, BASIC PRINCIPLES OF PROPERTY LAW: A COMPARATIVE LEGAL AND ECONOMIC INTRODUCTION 31 (2000); Julian Conrad Juergensmeyer, Florida’s Property Rights Protection Act: Does It Inordinately Burden the Public Interest?, 48 FLA. L. REV. 695, 701 (1996); David Schneiderman, Constitutional Approaches to Privitization: An Inquiry into the Magnitude of Neo-liberal Constitutionalism, LAW & CONTEMP. PROBS., Autumn 2000, at 83, 92. 11. See LEÓN DUGUIT, LAS TRANSFORMACIÓNES DEL DERECHO PÚBLICO Y PRIVADO (Editorial Heliasta 1975) [hereinafter DUGUIT, LAS TRANSFORMACIÓNES]. Some of Duguit’s works translated into English are LEÓN DUGUIT, LAW IN THE MODERN STATE (Frida Laski & Harold Laski trans., 1919) and Léon Duguit, Changes of Principle in the Field of Liberty, Contract, Liability, and Property, reprinted in THE CONTINENTAL LEGAL HISTORY SERIES, THE PROGRESS OF CONTINENTAL LAW IN THE NINETEENTH CENTURY 65 (Layton Bartol Register & Ernest Bruncken trans., Little, Brown, & Co. 1918). 12. DUGUIT, LAS TRANSFORMACIÓNES, supra note 11, at 236. 2011] INTRODUCTION 1005 limits—not just external ones as in the case of the liberal right to property.13 The owner has obligations with respect to his things. He cannot do what he wants with his property. He is obliged to make it productive. The wealth controlled by owners should be put at the service of the community by means of economic transactions.14 Consequently, the state should protect property only when it fulfills its social function. When the owner is not acting in a manner consistent with his obligations, the state should intervene to encourage or to punish him. Taxation and expropriation are powerful tools for achieving such ends. From this perspective, the state has both negative and positive obligations with respect to property. The idea of the social function of property is based on a description of social reality that recognizes solidarity as one of its primary foundations.15 For Duguit, the weaknesses of the classical liberal theory of property stem from the erroneous description of the individual and the society in which she is based. Liberalism’s emphasis on the individual and her rights is, for him, closely intertwined with the description it offers of human beings and the political community.16 In liberal thought, people are essentially autonomous and rational beings. Individuals have the ability to articulate, transform, and try to realize life plans by making use of reason. Consequently, the political community is a voluntary creation of individuals geared towards increasing the likelihood of autonomously and rationally constructing their life plans.17 The political community is the sum of the individuals that compose it. Rights, like those of property, are the instruments articulated to ensure that the state does not intervene unduly in the continuous process of construction and revision of individual identity. To Duguit, this conception of the subject and society loses sight of the fact that the interdependence between people (which is nothing other than solidarity) is the central element of social reality.18 Solidarity is not a political principle but a social fact. For Duguit, a precise description of society makes clear that its members have needs and capacities that are sometimes similar and other times different.19 The social division of labor is therefore crucial to ensuring the satisfaction of these needs. In order for the people and the community to flourish, each individual must comply with a series of functions